Milton Keynes Borough Council v Nulty, dec’d and others [2013] EWCA Civ 15; [2013] WLR (D) 25 (Toulson LJ, Beatson LJ, Longmore LJ)
Milton Keynes Borough Council v Nulty, dec’d and others [2013] EWCA Civ 15; [2013] WLR (D) 25 (Toulson LJ, Beatson LJ, Longmore LJ)
FactsOn 2nd April 2005 a fire broke-out at a recycling centre owned by the Respondent Borough Council.
Proceedings were brought by the Council against Mr Nulty, a self-employed electrical engineer who was working at the premises at the time of the fire. Mr Nulty sadly died before the action came to trial, but was insured against professional liability by the National Insurance & Guaranteed Corporation Limited (‘NIG’).
Mr Nulty was the only person working in the relevant part of the building at the relevant time. Immediately before the fire alarm was activated at 3.55pm, he was seen on CCTV walking towards the staff canteen portacabin, he later said, because he wanted a cup of tea and a cigarette.
Issues
There were three possible candidates for the cause of the fire:
1. A cigarette carelessly discarded by someone smoking in the area where the fire started;
2. Arcing from a live electric cable;
3. Arson by an intruder.
The Borough Council contended for the first and that Mr Nulty was probably to blame. NIG’s case was for the second and, alternatively, the third. In addition, NIG contended that if the cause was the first, then a cigarette could equally have been discarded by someone else.
Edwards-Stuart J, at first instance, rejected the possibilities that the fire was caused by an intruder or by a cigarette discarded by someone other than Mr Nulty. Those findings were not appealed.
That left the cause as either (1) Mr Nulty’s cigarette or (2) arcing of a Boa cable, both of which the judge found inherently unlikely, but the latter no higher than a “remote possibility”.
Having considered the rival causes, he concluded at [215]:
“Accordingly, of the three suggested causes of the fire, none of which, if taken on its own, is one that is inherently likely, I find that a cigarette end carelessly discarded by Mr Nulty is the most probable. In light of this conclusion I must now turn to the authorities in order to decide whether or not that finding is sufficient for me to hold as a result that the council has in law discharged the burden of proving that Mr Nulty caused the fire”.
The judge began with a consideration of the case of Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948, and from the subsequent authorities alighted on a particular passage in the judgement of Waller LJ in Khani v Land Rover Limited [2006] EWCA Civ 880 at [30]:
“I do not myself think that it is false logic to reason that where only two possibilities are under consideration both of which seem unlikely, if one seems much less likely than the other, the less likely can be discounted thus making the first likely to have happened on the balance of probabilities”.
In the instant case the Edwards-Stuart J concluded at [219]:
“In my judgement there are only three possible candidates for the cause of the first fire and they are the ones that I have mentioned. I accept that it might be regarded as unlikely that an experienced electrical engineer, who had in the past been a part time fireman, would choose to smoke in a building to which he knew a no-smoking policy applied and then discard the cigarette end – albeit one that he thought he had stubbed out – into flammable waste lying on the floor. But if the only other possible causes of this fire are very much less likely, as I find they are, then in law the discarded cigarette becomes the probable cause of the first fire”.
Held
Toulson LJ gave the leading judgment of the court.
1. A case based on circumstantial evidence depends for its cogency on the combination of relevant circumstances and the likelihood or unlikelihood of coincidence. A party advancing it argues that the circumstances can or most probably be accounted for by the explanation which it suggests. [paragraph 34].
2. Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation, and what other explanation might fit the circumstances [paragraph 34].
3. There is an inherent risk that a systematic consideration of the possibilities could become a process of elimination “leading to no more than a conclusion regarding the least unlikely cause of loss”, which was the fault identified in The Popi M [paragraph 34], (see too the comments of Lord Mance in Datec Electronics Holdings Limited v UPS Limited [2007] UKHL 23, [2007] 1 WLR 1325 at [48] and [50]).
4. Where the court conducts such an exercise it has to stand back and ask itself the ultimate question whether it is satisfied that the suggested explanation is more likely than not to be true. [paragraph 34]
5. The elimination of other possibilities as more implausible may well lead to that conclusion, but that will be a conclusion of fact; there is no rule of law that it must do so. [paragraph 34].
6. In holding that if the only possible causes of the fire other than a discarded cigarette are very much less likely, “in law the discarded cigarette becomes the probable cause”, the judge went further than he needed (and erred) in order to answer the question which he had raised at [215]. Provided (as was implicit in his reasoning) that the judge was satisfied on all the evidence that the case for believing Mr Nulty caused the fire was stronger than the case for not coming to that belief, he was entitled to find as he did.[paragraph 38-40].
7. The judge had arrived at his findings after a “painstaking examination of the evidence” and his conclusion was one that was properly open to him. Rational analysis of the ‘Boa cable theory’ showed that it was highly improbable. It would have required a remarkable combination of unlikely events. The objection to the discarded cigarette end theory was of a different nature. There was no comparable scientific or practical improbability about it. Rather, the circumstantial evidence to support it was compelling. [paragraph 69].
Comment
In a case where there are a number of possible causes of an event, it is important to recognise the distinction between the least unlikely cause and the probable cause. Proving the former does not, by itself, discharge the burden of proof. The court is concerned with an overall assessment of all the evidence.
As in The Popi M the instant case did not raise any question of law except possibly the question of what is meant by proof “on the balance of probabilities”.
In the The Popi M at [955] Lord Brandon likened “the least unlikely” approach to that of Sherlock Homes:
“My Lords, the late Sir Arthur Conon Doyle in his book The Sign of Four, describes his hero, Mr Sherlock Homes, as saying to the latter’s friend, Dr Watson: “How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable must be the truth?” It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J decided to accept the ship owners’ submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable”.
Lord Brandon gave three reasons why this approach was misconceived:
First, “the judge is not always bound to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden”.
Second, “the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated”.
Third, “the legal concept of proof of a case on a balance of probabilities must be applied with common sense…if a judge concludes, on a whole series of cogent grounds, that the occurrence of an event [or a suggested cause of an event] is extremely improbable, a finding by him that is it nevertheless more likely to have occurred than not, does not accord with common sense”.
Toulson LJ was clear that the “balance of probabilities” standard when expressed mathematically as “50 + % probability” carried with it a “danger of pseudo-mathematics”. Even where the number of possible causes is contained in a closed list of two it is not only “overly-formulaic”, but “intrinsically unsound” to approach discharge of the burden of proof by ascribing a probability factor to each individually in order to determine whether one had a probability figure greater than 50%.
Future chances can be expressed in terms of percentage, as can other concepts in the law of tort, such as ‘material contribution’ to damage or injury.
However it is axiomatic that past facts cannot be expressed in such terms. As Toulson LJ observed at paragraph 37 “…you cannot properly say that there is a 25% chance that something has happened: Hotson v East Berkshire Health Authority [1987] AC 750. Either it has or it has not”.
This case is an important reminder that whilst the court will try to avoid determining cases simply on the burden of proof, such an outcome cannot be sidestepped by a party presenting the court with a closed list of arguments or averments.
Edward Ramsay